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UMA SHANKER CHAUBEY versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Uma Shanker Chaubey v. State Of U.P. And Others - WRIT - A No. - 38428 of 1997 [2007] RD-AH 18475 (29 November 2007)

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HIGH COURT OF JUDICATURE AT ALLAHABAD

Reserved on 06.11.2007

Delivered on 29.11.2007

Civil Misc. Writ Petition No. 38428 of 1997

Uma Shankar Chaubey

Versus

State of U.P. & another

Counsel for the Petitioner Sri H.K. Singh

Counsel for the Respondents Sri Standing Counsel

Hon'ble V.K. Shukla,J.

Uma Shankar Chaubey has approached this Court questioning the validity of the decision taken by the disciplinary authority dispensing with his services as Head Constable vide order dated 17.11.1999 as well as the order of its affirmation by appellate authority and revising authority on 30.12.1996 and 15.07.1997 respectively.

Background of the case are that petitioner was posted in the year 1992 at the Police Chowki Sahson, Police Station Sarai Inayat, District Allahabad. On 27.07.1992 petitioner was sent for C.E.R at police lines Allahabad and petitioner did not report at police line Allahabad in time and without applying for leave and without taking any permission absented himself and thereafter presented himself on 29.12.1992 at 4.15 pm. Preliminary inquiry was conducted in the matter and thereafter recommendation was made for undertaking disciplinary proceedings against the petitioner as provided under Rule 14 of U.P. Police Officers of Subordinate Rank (Punishment and Appeal) Rules, 1991, One Jawahar Singh was appointed as Inquiry Officer. Petitioner was sent copy of charge sheet and on 25.04.1995, at his residence and same was accepted by his elder brother. Thereafter it was revealed that petitioner is staying in private residence opposite to Police Station Puramufti, in this background by special messenger on 03.05.1995 copy of the charge sheet and evidence was got received by petitioner himself. Petitioner was asked to submit his reply by 08.05.1995 and within stipulated period no reply was submitted as such again reminders were given on 10.05.1995 and 19.05.1995 mentioning therein in case within prescribed period reply is not filed then in absence of reply disciplinary proceedings would be concluded. On 22.05.1995 petitioner appeared before disciplinary authority and stated that he does not accept the charges leveled against him and intend to peruse the documents and to submit his reply. Thereafter petitioner perused the documents on 22.05.1995 but no reply was submitted, and on 29.05.1995 disciplinary proceedings continued and statement of Constable Chandra Prakash; Deputy Superintendent of Police, Saheb Rai, Senior Sub-Inspector Deenanath Tiwari and Head Constable Sita Ram Keshri was recorded, and on 19.09.1995 proceedings from side of prosecution concluded and petitioner was given opportunity on 19.09.1995 itself to produce evidence in his support and said letter was received on 25.09.1995. Petitioner in spite of receiving letter did not produce any evidence whatsoever. Thereafter disciplinary proceedings were concluded and Inquiry Officer submitted report that petitioner was relived for CER for police lines Allahabad and in stead of reporting there petitioner absented himself, in this background charge against the petitioner for unauthorized absence of 155 days was established and proved. After report of Inquiry Officer was received show cause notice was issued to petitioner on 17.10.1995. Notice was sent at home address of the petitioner and it was mentioned therein in case reply has not been submitted decision would be taken. Reply was not submitted by the petitioner to the said show cause notice and charges were brought home, as such order of dismissal was passed. Petitioner preferred appeal against the same before Deputy Inspector General of Police Allahabad Range Allahabad and therein petitioner has accepted this fact that he was absent and simultaneously contended that there was genuine and bonafide reason for his absence. Petitioner has contended that prior to said proceeding he was not keeping well and while he proceeding on 27.07.1992 enroute his condition aggravated and on account of which he got himself checked up through Dr. Om Prakash with effect from 28.07.1992 and started taking treatment from him. Petitioner has contended that when he got his good health on 27.12.1992 he was declared fit to resume duties and on 29.12.1992 he went to police station petitioner has contended that on the date when he returned back to resume his duties, he gave reasons and appended medical certificate and also contended that he gave telegram and information to the authorities concerned accordingly. Said appeal was taken up by the Deputy Inspector General of Police and Deputy Inspector General of Police took the view that after considering the medical report submitted by the petitioner it is clearly reflected that petitioner was out door patient and petitioner was in a position to move then petitioner ought to have complied with the provision as contained under Paragraphs 381 and 382 of U.P. Police Regulations and as in the present because leave without sanctioning and without complying with the provisions of Paragraphs 381 and 382 of U.P. Police Regulations, as such claim which has been set up by petitioner is ingenuine claim, and based on the same impugned order has been passed.

Counter affidavit has been filed contending therein that action which has been taken against the petitioner is rightful action as he has absented himself without sanctioning of any leave and accordingly after affording opportunity impugned orders have been passed which warrant no interference.

Rejoinder affidavit has been filed disputing the averments mentioned in the counter affidavit and reiterating the averments mentioned in the writ petition.

After pleadings mentioned have been exchanged present writ petition has been taken up for final hearing and disposal with the consent of the parties.

Sri H.K. Singh, Advocate contended with vehemence that in the present case fair treatment has not been accorded to the petitioner and defence of the petitioner has not at all been considered in its correct prospective, and further punishment awarded is shockingly disproportionate to the charges which has been leveled against the petitioner, as such writ petition in question deserves to be allowed.

Sri J.K. Tiwari, learned Standing Counsel countering the said submission contended that petitioner is member of disciplined force and he was sent for CER duties at police lines Allahabad which was deliberately avoided by petitioner and thereafter theory of medical illness has been set up which has not been believed by the authority concerned and coupled with this in the backdrop of the case punishment which has been awarded is not at all liable to be interfered with.

After respective arguments have been advanced, first question to be adverted to as to whether petitioner has been metted with fair treatment or not. Record in question reflects that petitioner was posted at posted at the Police Chowki Sahson, Police Station Sarai Inayat, District Allahabad and on 27.07.1992 petitioner was sent for C.E.R at police lines Allahabad but petitioner did not report at police line Allahabad for duties and thereafter presented himself on 29.12.1992 at 4.15 pm i.e. after 155 days. In between this is undisputed fact that there was no leave sanctioned qua the petitioner. Preliminary inquiry was held wherein disciplinary proceedings were recommended and disciplinary proceedings were undertaken and charge sheet has been issued to the petitioner to which in spite of receiving the same on 03.05.1995 petitioner did not submit any reply whatsoever. On 22.05.1995 petitioner gave oral statement denying charges and sought time for submitting his reply. Petitioner has perused the documents on 22.05.1999 but did not submit reply to the said charge sheet. Oral of evidence of Constable Chandra Prakash; Deputy Superintendent of Police, Saheb Rai, Senior Sub-Inspector Deenanath Tiwari and Head Constable Sita Ram Keshri were recorded, petitioner had chosen not to participate in disciplinary proceedings and in spite of notice kept himself away. On 19.09.1995 departmental evidence was closed and then opportunity was provided to the petitioner and said letter was received by petitioner on 25.09.1995 but in spite of the same petitioner did not produce any evidence whatsoever in rebuttal of the same. In this background inquiry was concluded and thereafter show cause notice was issued and opinion has been formed for dispensing with the service of the petitioner. Thus as far as inquiry is concerned same cannot be said to be unfair inquiry specially when on each and every occasion full opportunity was provided to the petitioner but the petitioner has deliberately chosen not to avail said opportunity provided to him. Before the Appellate Authority in spite of the fact that petitioner has not participated in the inquiry, whatever claim has been set up by the petitioner same has been considered by the Appellate Authority as well as Revising Authority and categorical finding of fact has been returned that petitioner has placed manipulated documents in his defence and charges which has been leveled against the petitioner has been established. It has also been observed that as per Paragraphs 381 and 382 of U.P. Police Regulations, once petitioner was out door patient then he ought to have reported as provided therein. In the present case each and every aspect of the matter has been considered by the disciplinary authority, as well as Appellate Authority/Revising Authority and said finding of fact cannot be said to be either arbitrary, unreasonable or perverse.

At this juncture Regulations 381 and 382 of U.P. Police Regulation is being looked into.

"381. It is incumbent on all applicants for medical leave or extension of leave on medical certificates to apprise the Superintendent of Police in writing of their intention to apply for a medical certificate. Any failure to do so may result in a decision that the medical certificate has been obtained by misrepresentation and may thereby entail serious consequence.

382. Under-officers and constables who fall ill when on duty or who are ill when due to return of duty, must apply for admission to the district police hospital or for treatment at the nearest dispensary, if the police hospital is out of easy reach. The fact of their admission or treatment must be reported to the local Superintendent of Police who unless they are his own subordinates will take immediate steps to communicate the fact to the Superintendent of Police whose subordinate they are Officers of higher rank are not compelled to apply for admission to police hospitals, but are not relieved of the responsibilities, while on leave of intimating their intention of obtaining medical certificate to the Superintendent of Police as prescribed above."

A bare perusal of the provisions quoted above would go to show that in the application of medical leave and extension of leave on medical certificates to apprise the Superintendent of Police in writing and any failure to do so may result in a decision that the medical certificate has been obtained by misrepresentation and thereafter may laid entail serious consequence. Further Constables who fall ill when on duty or who are ill when due to return of duty, must apply for admission to the district police hospital or for treatment at the nearest dispensary, if the police hospital is out of easy reach. The fact of their admission or treatment must be reported to the local Superintendent of Police who unless they are his own subordinates will take immediate steps to communicate the fact to the Superintendent of Police whose subordinate they are Officers of higher rank are not compelled to apply for admission to police hospitals, but are not relieved of the responsibilities, while on leave of intimating their intention of obtaining medical certificate to the Superintendent of Police as prescribed above.

In the present case petitioner was sent for CER and was to report at police line and in stead of doing the same petitioner submitted that enroute as he was not keeping well as such he was medically examined at Medical College, Allahabad and he was given treatment. Admittedly petitioner has not at all been admitted in the Hospital and the fact has been noted by the Appellate authority i.e petitioner was in a position to move as petitioner himself claimed of getting treatment from 28.07.1992 to 26.12.1992. Nothing has been brought on record that petitioner got himself checked up in Medical college, Allahabad except the certificate of Doctor dated 26.12.1992 wherein he has certified that Uma Shanker Chaubey has been under his treatment. Once petitioner was an out door patient and has not been admitted in hospital then nothing prevented him not to report at Police line within the city. In the present case theory which has been set up by the petitioner has not at all inspired confidence of authorities and has been found to be ingenuine. Cogent reasons have been given by the authority concerned for not accepting theory set up by petitioner. In these circumstances this Court cannot appreciate the evidence to reverse the finding of fact in exercise of its authority of judicial review, as said authority is not akin to the Appellate jurisdiction, as such view taken is not being interfered with.

Learned counsel for the petitioner has placed reliance on the judgment in the case of Shiv Prasad Avasthi Vs. State of U.P. and others reported in AISLJ 1983 (1) 524. Petitioner submits that his leave was due as such said absent could have been converted into leave and for this proposition reliance has been placed on paragraphs 10, which is as follows:

"The provisions quoted hereinabove indicate that normally an assistant working in the Secretariat cannot be allowed leave, either causal or regular, without prior sanction but in case of sudden illness or extreme urgenc this normal ruler or practice may not be adhered to. The reason for the exemption is quite obvious. If a Government official wants a casual leave or a regular leave he has to apply for it and if the leave is sanctioned he may remain absent from duty but if there is sudden illness or extreme urgency it may not be possible to follow this procedure. In case of sudden illness or extreme urgency the official has not to wait for sanction of his leave because otherwise the purpose would be frustrated. Suppose an official while leaving his home for his office suddenly slips and falls down and breaks his leg. He has to be removed to the hospital immediately for treatment. He cannot in such circumstances go to his office to attend to his duties nor can he wait at his house for prior sanction of his leave. There may be other such cases of extreme urgency or sudden illness where the official concerned may just apply for leave and not wait for the prior sanction of it. Holding otherwise would be acting against normal rule of life and as also law of nature. It would undoubtedly be unreasonable if an official is asked in a case of sudden illness or extreme urgency first to apply for leave and obtain prior sanction of it otherwise face disciplinary proceedings and meet any other penalty. That is why an exemption has been carved out in para-39 of Chapter III that no assistant should, except in cases of sudden illness or extreme urgency, be allowed leave either casual or regular, without prior sanction. The learned Standing counsel then submitted that illness in an official's family is not sufficient reason for his absence and will not ordinarily be considered a sufficient reason for grant of leave as has been provided in para-43 of Chapter III of the said Manual. In my opinion the provision contained in para-43 aforesaid would also cover a case of critical of serious illness of a member of the official's family where the official has to immediately attend on his ailing family member. To hold otherwise would again be unreaonsable and against rule of life. If a dependent of a particular official be he son, daughter, wife or parents suddenly becomes victim of a serious illness requiring immediate medical aid, the official who has at his credit earned leave as also casual leave, is expected to procure immediate medical aid to his ailing member of the family. Para 43 is therefore, to be read in conjunction with para-39 aforesaid."

Said judgment will not at all come to the rescue of the petitioner because in the present case admittedly petitioner was to report for CER duties at police line which he did not do and petitioner has set up case of sudden illness. Theory of medical fitness itself is doubtful for one simple reason that petitioner was out door patient and even said fact has not at all been substantiated and no documentary evidence has been provided to show that he was out door patient and then concerned Doctor was authorized to examine him on the said date by Medical College authorities. There is nothing on record to show that petitioner was either out door patient or indoor patient and merely by way of private arrangement petitioner has got himself examined through Doctor and produced his report, to which no credibility could be attached.

Here facts of the case are entirely different, as in order to avoid CER duties for which petitioner has proceeded, petitioner absented himself for 155 days and thereafter theory of medical fitness has been set up which is not at all believable in view of the specific provision provided for under Regulations 381 and 382.

Hon'ble Apex Court in the case of Narinder Mohan Arya Vs. Union of India reported in AIR 2006 SC 1748 has clearly taken the view that interference is permissible when there is no evidence and Court would not interfere, if inferences are supported by some material on record. Here as discussed above there is material in support of charge.

At last it has been contended that punishment which has been awarded is shockingly disproportionate and not commensurate to the charges.

Learned counsel for the petitioner has relied on the judgment in the case of Mirza Barkat Ali Vs. Inspector General of Police, Allahabad and others reported in 2002 (2) UPLBEC 1871. In the said case police Constable remained absent from duties for 109 days and his plea of illness was not accepted and then question was as to whether quantum of punishment is disproportionate with gravity of charges. In the said case Inquiry Officer himself recommended for minor punishment but S.P. disagreed with the proposed dismissal, in this background interference has been made and directives were issued for lessor punishment whereas in the present case Inquiry Officer has not recommended for any punishment and disciplinary authority on its own awarded such punishment, which has been affirmed by the Appellate Authority and thereafter by Revising Authority, as such fact of the present case are clearly distinguishable.

Next decision relied on by Learned counsel for the petitioner in the case of Rajesh Pratap Singh Vs. Union of India and others reported in 2006 (3) UPLBEC 2839. In the said case petitioner was dismissed from service for his absence on medical ground with application for sanction of leave. In the said case view taken was that petitioner cannot be accepted to be a grave misconduct.

Now the current view taken by Hon'ble Apex Court in this respect is being looked into.

Hon'ble Apex Court in the case of Y. P. Sarabhai v. Union Bank of India and Anr. reported in AIR 2006 SC 2316; [2006 (5) SCC 377] has taken the view that wherein incumbent was absent from duties for a very long period for about 5½ months of illness and said illness was to avoid transfer then evidence is same is assailable in Courts, when there is violation of principles of natural justice or violation of any rules or any material irregularity on face of record is alleged and shown. Here Petitioner was to report for CER duties at police lines Allahabad and in stead of doing the same for which he had proceeded, petitioner absented himself. In the disciplinary proceedings petitioner has chosen not to participate and not to lead any evidence in support of the same. Once Disciplinary Authority found that charges has been proved and defence set up has been considered by the Appellate Authority and Revising Authority then there is no occasion to interfere with the impugned orders and circumstances here are also speaking for itself that in order to avoid CER duty at police line, Allahabad petitioner has deliberately absent himself and the ground of aliment set up is neither here nor there.

Hon'ble Apex Court in the case of State of Rajasthan and another Vs. Mohd Ayub Naz reported in 2006 (1) SCC 589 in the matter of penalty/punishment while considering the scope of judicial review has taken the view that role of administrative authority is primary and that of court is secondary to be exercised only on well-settled wednesbury principles. In the said case on account of misconduct of absenteeism, dismissal from service was held to be justified and interference by the High Court was not approved and view taken was that High Court committed grave error by interfering and punishment of removal from service is the only proper punishment to be awarded to the incumbent who was wilfully absent for 3 years

Hon'ble Apex Court in the case of Union of India Vs Datta Liga Toshatwad reported in 2006 SCC (L&S) 1504 has taken the view that members of uniformed services cannot absent themselves on frivolous pleas having regard to nature of duties enjoined upon them and after false plea of illness is set up.

In the present case petitioner is member of disciplined force. Petitioner was sent for CER duties at police lines at Allahabad and in stead of doing the same petitioner absented for 155 days. In the disciplinary proceedings undertaken against the petitioner was given full opportunity and charges were established. Appellate Authority and Revising Authority have considered the defense set up by petitioner and found the same as after thought and circumstances speaking for itself. In this background in these peculiar circumstances, it cannot be said that punishment awarded is shockingly disproportionate to the charge and same does not warrant any interference by this Court.

Consequently, present writ petition is dismissed.

Dated:- 29th November, 2007

Dhruv


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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